OT - Obama vs. Bush: NO DIFFERENCE

On Tue, 19 May 2009 11:03:54 -0700 (PDT), mozark <...@gmail.com

A list of comparisons from Jack Goldsmith, former Bush OLC lawyer, who
is thrilled about the merely stylistic differences between the two:

(And btw, this record has been compiled while Obama is at the very
height of his popularity, with strong majorities in both houses, and
with Bush/Cheney popularity at its all-time low. So to use the "it's
been only 4 months" argument is politically retarded. The guy can just
about propose anything he wants, and this is what he's proposed.)

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The Bush approach to counterterrorism policy included eleven essential
elements. Here is the Obama position to date on each.

1. War v. Crime

A bedrock Bush principle was that the threat posed by al Qaeda and its
affiliates required the president to assert military war powers. The
legality of controversial policies like military detention, military
commissions, and targeted killings depends in the first instance on
the United States being in a state of war. Many Obama supporters and
most allies sharply disagree with the war characterization, and
maintain that the criminal justice system--arrest, extradition,
civilian trials, and the like--suffices to meet the terror threat.
President Obama mostly skirted this issue on the campaign trail. But
his administration has embraced the Bush view that, as a legal matter,
the United States is in a state of war with al Qaeda and its
affiliates, and that the president's commander-in-chief powers are
triggered. This position should be unsurprising: Congress has made
clear that we are at war with these groups, and the Supreme Court has
affirmed that we are.

2. Guantanamo Bay

President Obama has announced that he is closing the detention
facility at Guantanamo Bay, Cuba. By itself, this is not a departure
from the Bush administration, which also stated a desire to close
GTMO. The new administration is implementing this policy with greater
vigor, however, and is seriously considering bringing terrorist
detainees to the United States. Congress and our allies are throwing
up roadblocks to these efforts. Even if the administration overcomes
them, closing GTMO may have no material impact on U.S. detention
practice. Because the Supreme Court has ruled that habeas corpus
rights extend to detainees on the island, the detainees will likely
receive no more rights on U.S. soil than in Cuba. The real question is
not where the detainees are located, but rather the basis for their
detention. On this issue, as explained below, the new president is
swimming close to the old one.

3. Military detention

Many Obama supporters thought he would oppose the detention of
terrorist suspects without trial. But not so. Last month Secretary of
Defense Gates hinted that up to 100 suspected terrorists would be
detained without trial. And a few weeks ago the Obama Justice
Department filed a legal brief arguing that the president can detain
indefinitely, without charge or trial, members of al Qaeda, the
Taliban, "associated forces," and those who "substantially support"
these groups, no matter where in the world they are captured. Federal
district court judge Reggie Walton correctly noted that the Obama
administration refinements drew "metaphysical distinctions" with the
Bush position that seemed to be "of a minimal if not ephemeral
character." The Obama refinements might preclude detention of some
suspected terrorists who would be detainable under the Bush regime,
but only at the margin. The core Bush legal position remains in
place.

4. Habeas Corpus

During the campaign former professor Obama spoke eloquently about the
importance of habeas corpus review of executive detentions of enemy
soldiers. Habeas corpus is "the foundation of Anglo-American law" and
"the essence of who we are," he said. But his administration has
applied this principle in the same narrow fashion as the late Bush
administration. It has argued that Guantanamo detainees can challenge
the "fact, duration, or location" of confinement on habeas review, but
not their "conditions of confinement." It has maintained that "the
Geneva Conventions are not judicially enforceable by private
individuals" in habeas proceedings. And it has made clear its belief
that the limited habeas rights it recognizes for the two hundred or so
detainees on Guantanamo Bay do not extend to the 600 or so detainees
in Bagram Air Base. This latter position might prove more
controversial for President Obama than for President Bush. The new
president's enlarged military commitment in Afghanistan and Pakistan,
combined with the forthcoming closure of Guantanamo, means that the
number of suspects detained in Bagram--without charge or trial and
without access to lawyers or habeas rights--is likely to increase,
perhaps dramatically.

5. Military Commissions

On his first day in office, President Obama sought a 120-day
suspension of military commissions that many viewed as their death
knell. But last week the Obama administration said it would revive
military commissions. The main impetus for this decision, according to
The Washington Post, is that the new administration, like its
predecessor, concluded that its cases "would fail in federal courts or
in standard military legal settings." The new commissions rules have
not been published but they will apparently disallow evidence obtained
from coercion, admit hearsay only if it is reliable, and give
detainees more freedom to choose their attorneys. These are not large
changes from the Bush rules as they stood in 2008. Under the Bush
regime military judges could and did suppress evidence obtained from
coercive interrogations (though not to the same degree as they will be
able to do under Obama) and declined to admit unreliable hearsay. And
the Obama alteration on defense lawyers does not appear substantial.
So, if we map the distance between the rights that suspected
terrorists would receive under Bush military commissions and the
rights they would receive in civilian trials, suspects tried in Obama
military commissions gain relatively little from the Bush baseline.

6. Targeted Killing

Targeted killing is another Bush administration policy being
continued, and indeed ramped up, by President Obama. The new
administration has used unmanned predator drones to kill suspected al
Qaeda targets in Afghanistan and Pakistan at a greater rate than the
Bush administration. These more aggressive targeted killings have
predictably caused more collateral damage to innocent civilians. In
what appears to be the worst episode since 9/11, a predator attack
earlier this month killed many dozens of civilians, including many
women and children, in the Farah province of Afghanistan. The targeted
killing policy has grown very controversial in Afghanistan and among
human rights groups. The International Committee of the Red Cross
maintains that international law permits targeting only of people
"continuously" engaged in hostile actions, and that only "necessary"
force can be used against them. This standard would require a
significant rollback of the Obama targeted killing program. It is thus
not surprising that the Obama State Department views the Red Cross
restrictions as "problematic."

7. Rendition

The Obama administration has said that it will continue renditions--
the practice, dating back at least to the Clinton administration, of
grabbing suspected terrorists in one country and bringing them to
another. CIA director Panetta has said that the Obama administration
will not render suspects for purposes of torture, and many have seen
this position as a rejection of the Bush form of rendition. But
despite this rhetoric, the Obama administration will continue to use
the Bush-Clinton standard of foreign country assurances concerning
torture, a standard that prohibited rendition only when it is "more
likely than not"--that is, a greater than 50 percent chance--"that the
suspect will be subjected to torture." Because the public knows little
about the rendition practice, it is unclear how, if at all, the
practice will change under Obama. But the core legal standard
articulated by the new administration appears to be the same as its
predecessor.

8. Secret Prisons

While the Obama administration has not rejected rendition to third
countries, it has dismantled the Bush system of secret overseas
prisons (so-called "black sites") and thus has eliminated rendition to
and detention in these prisons. Although the Bush administration used
these facilities little in recent years, this seems like a departure
from the Bush era. But even here the Obama practice may be closer to
the late Bush practice than meets the eye. President Obama's executive
order barring the CIA from using "detention facilities" contained a
loophole for "facilities used only to hold people on a short-term,
transitory basis." The degree to which the Obama policy is a true
departure from the late Bush practice thus depends on the
administration's (probably secret) interpretation of what it means to
detain someone on a "short-term, transitory basis."

9. Surveillance

In the summer of 2008, candidate Obama voted to put President Bush's
unilateral warrantless wiretapping program, which he had opposed as an
abuse of presidential power, on a legally more defensible statutory
basis. Obama supported the bill even though it gave telecommunication
firms that cooperated with President Bush immunity from lawsuits, a
provision Obama disliked. In office, President Obama has not renounced
or sought to narrow any of the surveillance powers used by the late
Bush administration, and has not sought legislation to reverse the
telecom's immunity. Nor has he yet acted to fulfill his campaign
pledge to significantly strengthen the Privacy and Civil Liberties
Board that oversees and protects civil liberties in intelligence
gathering. The Obama surveillance program appears to be identical to
the late Bush era program.

10. State Secrets

The state secrets doctrine allows the government to prevent the
disclosure of evidence in court based on its view that the disclosure
would endanger national security. Candidate Obama criticized the Bush
administration's use of this doctrine. But in at least three lawsuits
growing out of Bush-era surveillance and rendition practices, the
Obama Justice Department endorsed the same broad view of the state
secrets privilege as the Bush administration. President Obama said
last month that "the state secret doctrine should be modified" to make
it a less "blunt instrument," and his lawyers are seeking ways to
narrow the doctrine in some cases. But it is unclear how far this
initiative will go, and in any event for now the Obama position is the
Bush position.

11. Interrogation

On his first day in office President Obama signed an executive order
requiring the CIA to use only the relatively benign techniques
approved by the military field manual. He later released and rejected
Department of Justice legal interpretations of the Torture statute and
related laws. This is a large change in announced policy from the Bush
administration, and the change that the former Vice President seems to
like least. But it is less of a departure from the late Bush practice
than meets the eye. Several reports suggest that a 2006 Supreme Court
ruling, legislation concerning interrogation that same year, and
growing public opprobrium led the Bush team, by 2007, to narrow the
range of CIA-approved interrogation techniques, especially as compared
to 2002-2003. Moreover, the Obama executive order established a task
force to study whether the CIA should be able to use different
interrogation techniques than the military, and CIA Director Panetta
supports tougher interrogation techniques for his agency in some
circumstances. As a result, the jury is still out on the differences
between CIA interrogation techniques used during the late Bush
administration and those ultimately used by Obama's CIA.